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TheWeekInCongress.com (TM) Week Ending December 21, 2007
S.2248 An original bill to amend the Foreign Intelligence Surveillance Act of 1978, to modernize and streamline the provisions of that Act, and for other purposes.
This bill is similar to the House-passed bill, HR 3773, in that it is an attempt to further define the processes (under the Foreign Intelligence Surveillance Act of 1976) by which the Executive Branch can conduct electronic surveillance. Both bills, and Congress’ efforts with the issue over the past 12 months, aim to prohibit any intrusions into the privacy of US citizen’s telephone and e-mail communications and to require that the President and Attorney General do not authorize any such surveillance without the approval of the overseeing FISA Court with some exception.
The Protect America Act was passed by Congress in August 2007 and is recognized as having increased the President’s ability to authorize and conduct foreign intelligence surveillance in a fashion that does not increase protection of the privacy of US citizens.
The Senate Committee explained in the bill report its determinations that the Protect America Act should be revised, that FISA should be amended to provide additional procedures to facilitate the targeting of persons reasonably believed to be outside the US in order to acquire foreign intelligence information, that additional protections should be afforded US persons whose communications are targeted for collection or collected incidentally and that narrowly circumscribe civil immunity to companies that may have participated in the President’s activities begun shortly after September 11, 2001.
Immunity to lawsuits Lawsuits asking for hundreds of billions of dollars in damages from telecommunication companies that provided data and services to the government in 2001 are in play and have been disputed by the Federal government on the grounds that information required to establish the suits are State secrets based on the assertion that subject matter in the suits (who the providers were) is a State secret. The result of that assertion is that the service providers may not identify themselves as having participated in the President’s program and so can not defend themselves.
The bill considers three areas relating to the lawsuits: The exposure to liability of providers who participated in the President’s program, the courts abilities in assessing statutory immunity provisions that would otherwise be subject to the State secrets privilege and the role of State public utility commissions in regulating electronic communications service provider’s relationships with the intelligence community.
In general, the Committee has determined that “The action the Committee proposes for claims arising out of the President's program should be understood by the Executive branch and providers as a one-time response to an unparalleled national experience in the midst of which representations were made that assistance to the Government was authorized and lawful.” When, in fact, it may not have been.
The bill provides retroactive immunity for electronic communication service providers against civil lawsuits. The provision is not intended to affect pending or future suits against the Government regarding the legality of the President’s program, the Committee holds. Actions taken by electronic communication service providers as authorized by the President that are determined to have been designed to detect or prevent a terrorist attack or activities in preparation for a terrorist attack authorized between September 11, 2001 and January 17, 2007 are considered lawful in the bill.
The Committee determined that those electronic communication service providers acted in good faith belief in the President’s program and that their assistance was lawful. The Committee based that determination on written communications from US Government officials and providers and relevant testimony. Because the providers relied on the government official’s determination that the program was legal, liability should not rest on them. Liability is waived if the provider is given a court order directing the assistance or a certification in writing signed by the Attorney General that no warrant or court order is required by law, that all statutory requirements have been met and that the specific assistance is required.
The Committee went further to include that the intelligence community relies heavily on provider’s cooperation and that a lack of liability protection could result in the provider’s unwillingness to assist in the future. In the future civil claims will be dismissed upon certification by the Attorney General that any assistance had been provided pursuant to a court order or statutorily-prescribed certification or directive.
State investigations or required disclosure of information is preempted.
Other bill provisions The Committee Report explains provisions in the bill considered to be improvements to existing law:
Use of information Dissemination of information must be minimized; Information can only be shared for appropriate intelligence and law enforcement purposes; and Inadvertently collected intelligence must be destroyed.
FISA processes Allows the government to present a summary, rather than a full description, of how the surveillance will be effected and what intelligence is sought; and Extends the existing FISA emergency period from three to seven days during which the surveillance may be conducted under direction of the Attorney General prior to a FISA Court order.
Oversight Requires the intelligence community to conduct an annual review of whether new surveillance authorities are being properly applied; Requires the Attorney General to provide detailed semi-annual reports to Congress concerning collections and non-compliance; Authorizes the Inspector Generals of Justice and the intelligence community agencies to conduct independent reviews of compliance with court-approved acquisitions.
Privacy protections Prohibits warrantless surveillance against persons inside the US. “The bill requires…a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted.”
Sponsor: Senator John D. Rockefeller IV (D-WV) Vote: Cloture motion was agreed to in the Senate 76 to 10 RV 435 December 17, 2007. Congress adjourned its first session without further consideration of the bill. Cloture was invoke on the bill February 13, 2008 by a vote of 69 to 29 RV 19 The bill then passed 68 to 29 RV20 Cost to the taxpayers: Earmark Certification: ## All Rights Reserved. © 2007 TheWeekInCongress.com(TM) No reproduction, language translation or distribution without written permission from TheWeekInCongress.com.(TM)
MORE INFORMATION AMENDMENTS Changes the Leahy Amendment would make to the bill Senator Leahy's Comments on his amendment Senator Feingold's Comments on the Leahy Amendment Senator Hatch's and other's Comments on the bill and the Leahy Amendment.
The issue has a lengthy history: Backgrounder report on FISA history and the White House Actions under dispute.
S 2248 December 2007 report
Other FISA Bill Reports: S 2271 March 2006 report & HR 3199 March 2006 report on the PATRIOT Act. {Surveillance provisions are in Sections 105 & 106} HR 5825 September 2006 report HR 3556 August 2007 report S 1927 August 2007 report HR 3773 October / November 2007 report
AMENDMENTS Amendments For S.22481.
S.AMDT.3857 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 2.
S.AMDT.3858 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 3.
S.AMDT.3859 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 4.
S.AMDT.3862 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 5.
S.AMDT.3863 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 6.
S.AMDT.3866 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 7.
S.AMDT.3901 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 8.
S.AMDT.3902 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 9.
S.AMDT.3903 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 10.
S.AMDT.3905 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 11.
S.AMDT.3907 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 12.
S.AMDT.3908 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 13.
S.AMDT.3909 to
S.2248
To require that certain records be submitted to Congress. 14.
S.AMDT.3910 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 15.
S.AMDT.3911 to
S.2248
In the nature of a substitute. 16.
S.AMDT.3912 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 17.
S.AMDT.3913 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 18.
S.AMDT.3914 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 19.
S.AMDT.3915 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 20.
S.AMDT.3916 to
S.2248
Of a perfecting nature. 21.
S.AMDT.3917 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 22.
S.AMDT.3918 to
S.2248
Relative to the extension of the Protect America Act of 2007. 23.
S.AMDT.3919 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 24.
S.AMDT.3920 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 25.
S.AMDT.3921 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 26.
S.AMDT.3922 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 27.
S.AMDT.3923 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 28.
S.AMDT.3924 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 29.
S.AMDT.3925 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 30.
S.AMDT.3926 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 31.
S.AMDT.3927 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 32.
S.AMDT.3928 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 33.
S.AMDT.3929 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 34.
S.AMDT.3930 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 35.
S.AMDT.3931 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 36.
S.AMDT.3932 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 37.
S.AMDT.3933 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 38.
S.AMDT.3934 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 39.
S.AMDT.3935 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 40.
S.AMDT.3936 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 41.
S.AMDT.3937 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 42.
S.AMDT.3938 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 43.
S.AMDT.3939 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 44.
S.AMDT.3940 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 45.
S.AMDT.3941 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 46.
S.AMDT.3942 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 47.
S.AMDT.3943 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 48.
S.AMDT.3944 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 49.
S.AMDT.3945 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 50.
S.AMDT.3946 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 51.
S.AMDT.3947 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 52.
S.AMDT.3948 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 53.
S.AMDT.3949 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text. 54.
S.AMDT.3950 to
S.2248
Purpose will be available when the amendment is proposed for
consideration. See Congressional Record for text.
ADDITIONAL VIEWS OF CHAIRMAN ROCKEFELLERPresident Bush issued a secret order after September 11th, 2001, authorizing the Intelligence Community to collect without a court order phone and email communications going into and out of the United States where there were reasonable grounds to believe that one party was a member of a terrorist organization. The expressed purpose of the President's order was to collect intelligence that might help identify terrorists and disrupt their plots before they could be carried out. The President's order, however, also prevented both the judicial and legislative branches of government from carrying out statutorily required oversight of electronic surveillance programs. The President had a chance to work with Congress in the aftermath of 9/11 to craft a balanced revision to the Foreign Intelligence Surveillance Act (FISA) that would have eliminated the archaic hurdles of targeting foreign agents that had evolved over time while maintaining the essential role the judiciary performs in ensuring the constitutional privacy rights of Americans are not violated in the process. The President squandered the chance at a critical moment in our Nation's history to unify our efforts in combating the threat of terrorism and instead chose an imperious, go-it-alone approach to governance. In doing so, the Bush Administration sowed the seeds of the program's eventual demise and created a statutory turmoil that Congress is now attempting to resolve. The President's decision to circumvent the Foreign Intelligence Surveillance Court in carrying out the broad electronic surveillance program and to limit knowledge of the program's existence to only a handful of congressional officials was misguided and undermined the legitimacy and effectiveness of the program. Ultimately, the Administration was forced to seek and obtain in January 2007 court approval for the collection of electronic communications previously carried out without an order. Efforts by the four congressional oversight committees to fully understand the surveillance program's scope, legal basis, and operational effectiveness have been continually frustrated over many years by an impenetrable cloak of secrecy and a Bush Administration mantra that falsely equates congressional oversight as anathema to national security. Even now, six years after the warrantless surveillance program was initiated, the Administration continues to withhold from Congress without justification the documents and information it needs to have a full accounting of what happened under the program. The Administration's unwillingness to provide a complete disclosure of these facts is short-sighted and untenable. Only after the program was disclosed publicly nearly two years ago did the Bush Administration reluctantly agree to brief the entire membership of the Senate and House intelligence committees. At first, the briefings provided were not complete or accurate representations of the program's historical and contemporaneous scope. Glossed over in these delayed briefings as well were the legal concerns within the Administration about the program's operations. As this and other relevant information was being withheld from the Committee, high-ranking officials of the Bush Administration were selectively declassifying and releasing information about the program and falsely assuring the American people that no concerns about the program's legality had been voiced within the Administration. The Committee will not be dissuaded from completing its review of the President's program. In addition, the reluctance on the part of the Bush Administration to trust and cooperate with Congress unnecessarily alienates those legislators in both parties who wish to work to make our laws stronger and our intelligence capabilities directed at terrorists more robust. Despite the Bush Administration's distrust of Congress and its inherent resistance to the concept of accountability, the Committee recognized early this year the need to undertake a careful and deliberate review of intelligence collection authorities embodied in the 1978 FISA law. My goal in undertaking this effort was for the Committee to produce a bipartisan bill that would strengthen our national security, protect the civil liberties and privacy rights of all Americans, and ensure that the unchecked wiretapping policies of the Bush Administration are a thing of the past. The Committee has reported legislation that meets this goal. The bill, passed on a 13-2 vote, adds the necessary and appropriate court and congressional oversight of surveillance activities that is absent in the flawed Protect America Act hastily passed and signed into law in August. Furthermore, the Committee bill requires that Americans located overseas cannot be targeted for surveillance without court approval, a notable privacy protection not currently in the law. The bill also includes a narrowly-focused liability provision that protects telecommunications companies from being sued for alleged participation in the surveillance program from 9/11 until it was placed under FISC authorization in January of this year. This immunity provision is not the broad and vague immunity sought by the Administration. The bill does not provide retrospective immunity for government officials for their actions or to companies outside the specified time frame. Nor does the bill extend to criminal proceedings. The Committee did not endorse the immunity provision lightly. It was the informed judgment of the Committee after months in which we carefully reviewed the facts in the matter. The Committee reached the conclusion that the immunity remedy was appropriate in this case after holding numerous hearings and briefings on the subject and conducting a thorough examination of the letters sent by the U.S. Government to the telecommunications companies. The Committee determined that telecommunications companies are often asked to be partners in law enforcement and national security efforts, and that their participation was based on what they believed to be lawful directives and representations of the President and the Attorney General. The assistance of companies is invaluable in carrying out programs that provide for our national security and protect American lives. It is important that this assistance continue and not be extinguished under a deluge of lawsuits. I believe it is the Bush Administration, not the
companies, who must be accountable for the mishandling of the warrantless
surveillance program. The internal debate within the Administration over
the program was kept from those who participated in the program as well as
from the Congress. The Committee, especially now that it finally has
access to the President's authorization orders and Department of Justice
opinions, will continue its examination of the activities authorized by
the President and report its findings. Whatever the conclusions of the
Committee may be, the burden of any debate about the conduct of Government
officials should not fall on the telecommunications providers who
responded to representations made to them after September 11th that the
program was legal and that their assistance was required to protect
American lives. ADDITIONAL VIEWS OF SENATORS BOND, CHAMBLISS, HATCH, AND WARNERIn 1978, Congress passed and the President signed into law the Foreign Intelligence Surveillance Act (FISA). The Act was the result of lengthy debates on the need to strike an appropriate balance between protecting the civil liberties of Americans and using all necessary and appropriate tools to defend the national security of the United States. FISA served us well for almost thirty years, and, in many ways, it continues to do so. Due to changes in technology, however, FISA began to inhibit vital foreign intelligence collection in ways that Congress never intended. The impact on our intelligence agencies and our troops on the battlefield was profound. Congress acted to correct this problem through the Protect America Act (PAA), which the President signed into law in August 2007. The PAA was enacted as a temporary solution to a serious legal problem that was causing significant intelligence gaps. The PAA is not perfect, but it has done the job it was intended to do. Because the PAA expires in February 2008, it is imperative that Congress pass more permanent changes to FISA. The FISA Amendments Act is a vitally important piece of legislation that makes long-term improvements and restores much of the original intent of FISA: maintaining the requirement for Foreign Intelligence Surveillance Court (FISC) approval for the electronic surveillance of persons within the United States, while allowing the acquisition of foreign communications without such approval. In addition, the FISA Amendments Act adds new privacy protections for American citizens. Chairman Rockefeller and I, along with the Director of National Intelligence (DNI), the Department of Justice, and the members of the Senate Intelligence Committee, worked closely together over the past several months to produce this responsible, bipartisan legislation. All of the parties involved had to make significant compromises, but the result is a bill that protects Americans' privacy and civil liberties without unnecessarily hindering the ability of our intelligence agencies to intercept the communications of terrorists and other threats to our national security. The Senate Intelligence Committee was in a unique position to weigh and assess the many highly classified aspects of our foreign intelligence surveillance operations and to discuss and debate those sensitive issues before we wrote this legislation. The Committee was also entrusted with special access to sensitive national security documents related to this legislation per the Committee's unique jurisdiction over sensitive matters. The resulting Committee bill will work for the Intelligence Community, will work for national security, and will work to protect Americans' privacy interests. The bill allows the Intelligence Community, through a joint Attorney General and DNI certification, to target the communications of foreign targets outside the U.S. without prior court approval. This provides the speed and agility the Intelligence Community needs and keeps foreign intelligence targets outside of the direct purview of the FISA court, which is what Congress intended when it drafted the FISA bill in 1978. This ensures that foreign collection can continue and that the FISA Court is not bogged down with reviewing numerous foreign collections outside of its purview. The FISA Amendments Act also ensures the protection of Americans' civil liberties by providing that acquisition may be conducted only in accordance with targeting and minimization procedures adopted by the Attorney General and reviewed by the FISC. Targeting must be consistent with the Fourth Amendment and reverse-targeting of Americans is specifically prohibited. There are also several provisions in the bill that enhance oversight by Congress, the Attorney General, the DNI, and Inspectors General. One of the most important provisions in this bill is retroactive liability protection for those telecommunication carriers alleged to have assisted the government with the President's Terrorist Surveillance Program (TSP). We believe, without any doubt, that the President properly used his authority under Article II of the Constitution to protect this country in the wake of the 9/11 terrorist attacks. We believe that the TSP was legal, necessary, and most likely prevented another terrorist attack against the homeland. Those who constantly harp on the misleading assertion that the TSP was illegal conveniently ignore the federal case law that recognizes the President's Article II authority to engage in warrantless surveillance in the context of gathering foreign intelligence. Instead, they assert that the TSP violated FISA. The last time we checked, the Constitution always trumps any statute passed by Congress, including FISA. Even at his lowest ebb, the President still possesses significant authority vis-a-vis Congress in the area of intercepting enemy communications. I have reviewed the Department of Justice legal opinions and the Presidential authorizations which critics of the TSP had declared would hold the smoking gun that the program was illegal. I have found no smoking gun, and those of us who have seen these documents have found nothing in them that would support the conclusion that the government's actions were illegal. While others may disagree, there should be no doubt that those carriers who are alleged to have participated in the program acted legally and believed that what they were doing was patriotic and in the best interest of the country. These companies deserve to be protected from these costly and frivolous lawsuits. Those who ask why the companies need such protection if they did nothing illegal are missing the fundamental point that the government's invocation of the states secrets privilege precludes these companies from asserting valid defenses and providing the court with any factual evidence confirming or denying their involvement in the program. As a result, these companies cannot defend themselves even if they never participated in the program. Some have suggested that indemnification of these companies is a better solution. In reality, this is not a suitable fix for the companies, the American taxpayer, or our Intelligence Community. First, lawsuits can be extremely costly to a company in terms of damage to business reputation and stock prices even if that company is ultimately found not liable or if the government pays the legal bills. Second, the American taxpayers have a large enough tax burden and should not be forced to shoulder an additional burden to finance these frivolous lawsuits, filed by parties with no standing or actual damages. We should not use taxpayer funds to line the pockets of trial lawyers seeking to graymail the government into settling these lawsuits to avoid the public disclosure of classified information. Third, the irresponsible and criminal leaks of the TSP and other intelligence programs have been costly to our Intelligence Community. Continuing to litigate these cases against the carriers will risk unnecessary further disclosure of our intelligence sources and methods. Our enemies are not stupid. They pay attention to our laws and legal proceedings, sometimes better than we do. We have no doubt that they have followed each disclosure or leak of intelligence information with interest. If a person believes that the government has violated his rights, then that individual should pursue legal action against the government. Anyone who wants to pursue legal claims against the government is free to do so under this legislation, but, if we allow these companies to suffer for helping us in the war on terror, could we really blame a company for not wanting to help the next time it is called upon to assist in defending our country? Unfortunately, the bill contains one very problematic provision, added by amendment, which, if not modified, will make it difficult to get our bill out of the Senate and may make it impossible to get the support of the President who must ultimately sign the bill. This provision prohibits surveillance of U.S. persons who are overseas without a court order. Those in favor of this amendment argue that we should not be conducting surveillance or searches of Americans without a court order. The Fourth Amendment, however, does not always require a warrant. Rather, warrantless surveillances and searches are routinely upheld by courts if they satisfy the reasonableness requirement of the Fourth Amendment. Thus, in the criminal law context, courts have recognized that no warrant is required to conduct a border search, an inventory search, consensual monitoring, certain vehicle searches, etc. Similarly, under Executive Order 12333, section 2.5, signed by President Reagan in 1981, the Attorney General may authorize surveillances or searches of U.S. persons inside and outside the United States upon a finding of probable cause to believe that that person is a foreign power or an agent of a foreign power. Section 2.5 authority has worked well and without any known abuses. Congress chose in 1978 to leave this authority outside of FISA due to the court's lack of jurisdiction overseas and other complicating intelligence matters. Nevertheless, we support the intent of the amendment: any time a U.S. person is the target of surveillance, the government should get an appropriate judicial ruling. However, since significant technical and legal problems with the provision's language have unintended consequences that would cause the Intelligence Community to lose valuable intelligence on certain U.S. persons who are spying for a foreign power or supporting terrorism, we remain hopeful that we will be able to reach a compromise on this issue when we get to the floor. As this U.S. person surveillance provision is
discussed in the weeks ahead, I want to make sure that all Americans are
clear about what individuals would be subject to this provision. The
Intelligence Community is not targeting American businessmen traveling
overseas on a trip or students studying abroad. It is not targeting
ordinary tourists or our soldiers. Instead, they are targeting those few
individuals on whom the Intelligence Community seeks to gather foreign
intelligence information only after the Attorney General has found
probable cause that these U.S. persons are foreign powers or agents of a
foreign power. The men and women of our Intelligence Community are
honorable people who have taken an oath to protect and defend the
Constitution of the United States, and they understand their legal and
operational boundaries. It is unfortunate that some are using scare
tactics to confuse Americans into thinking that they might be monitored by
the U.S. government when traveling overseas. Unless they are spying for a
foreign country or supporting terrorism, our government has no foreign
intelligence interest in them. Frankly, despite budget increases since
9/11, our Intelligence Community has enough work on its hands tracking
terrorists and spies intent on harming us without wasting precious time
and resources surveilling innocent Americans. ADDITIONAL VIEWS OF SAXBY CHAMBLISSWhen Congress first considered enacting the Foreign Intelligence Surveillance Act (FISA) it was after some of the most serious intrusions into Americans' lives by the U.S. Intelligence Community were exposed by the Congress. Since 1978, Congress has provided rigorous oversight of our Intelligence Community and enacted valuable legislation, such as FISA, in order to guide our collectors. Congress, and the Intelligence Community, have taken measures to ensure that U.S. citizens are protected from unnecessary government intrusions into their private lives while at the same time balancing the government's need to collect vital intelligence necessary to ward off terrorist attacks or the spies of our enemies. The post 9/11 environment in which Congress must now consider amending FISA is much different from the Cold War era. The threat to the homeland is real and our enemies communicate through more sophisticated means and in a more security conscious manner than in 1978. These evolving threats must be considered by Congress during the debate on FISA modernization. The FISA Amendments Act of 2007 provides much needed updates to FISA, but I am concerned that Congress may not reach this delicate balance without further amending the bill. The Chairman and Vice Chairman introduced a carefully crafted, bi-partisan piece of legislation. Although it was not a perfect bill, I was willing to forego offering amendments to support the bi-partisan process and provide our Intelligence Community with the minimum requirements it needs in an environment with rapidly changing technology. I believe that the bill which was ultimately adopted by the Committee, and with my support, contains troubling language which should be altered before enactment. I had filed three amendments prior to the Committee's consideration of the FISA Amendments Act of 2007. Although I did not offer any of them, I believe these issues should be addressed by Congress. My first amendment would change the definition of `electronic surveillance' to make it target-oriented and technology neutral. Rather than carving out an exception to `electronic surveillance' for communications where the target is reasonably believed to be overseas, I believe it would be prudent for the Committee to craft a new definition which focuses on the core question of who is the subject of the surveillance rather than on how or where the communication is intercepted. When FISA was enacted in 1978, Congress used language that was technology-dependent and related specifically to the telecommunications systems that existed at that time (such as `wire and radio communications'). As a result of revolutions in communications technology since 1978, and not any considered judgment of Congress, the current definition of `electronic surveillance' sweeps in surveillance activities that Congress intended to exclude from FISA's scope. For example, in 1978, most foreign communications went through the air rather than over a wire and most domestic communications were on a wire. Today, most domestic communications, such as cell phone communications, travel through the air and most international communications travel over a wire. The FISA Amendments Act of 2007 seeks to fix this major problem identified by the Director of National Intelligence as a result from this outdated definition, but does so by excluding, or carving out, foreign to foreign communications from the definition of `electronic surveillance' rather than fixing the underlying problem. Although the problem of foreign targeting may be fixed, it is difficult to foresee what additional problems the current technology-based definition may cause in the future. I believe that amending the definition of `electronic surveillance' is the best and most comprehensive solution. My second amendment would have been a minor technical change deleting the definition of `wire communication.' If the definition of `electronic surveillance' is changed, there would no longer be a need to have a definition for `wire communication' since the statute would be technology neutral. My final amendment sought to strike a provision in the FISA Amendments Act which would require the Foreign Intelligence Surveillance Court (FISC) to review the Attorney General's probable cause determination when the target of surveillance is a known U.S. person overseas and there is probable cause to determine that the individual is a foreign power, agent of a foreign power, or an officer or employee of a foreign power. Instead, Senator Wyden introduced, and the Committee adopted, an amendment requiring that any time a U.S. person is the target of surveillance, regardless of where the collection occurs, the Attorney General must seek FISC approval for that collection. I am concerned that Senator Wyden's amendment is an attempt by Congress to micromanage the Intelligence Community. Currently, under Executive Order 12333, Section 2.5, the Attorney General may authorize the targeting of a U.S. person overseas upon finding probable cause to believe that the individual is a foreign power or agent of a foreign power. Senator Wyden's amendment seeks to prevent the Intelligence Community from acting quickly and with discretion in a process which has worked well to protect U.S. persons for almost thirty years. The Intelligence Community will now be required to obtain authorization from the FISC prior to conducting surveillance against terrorists or spies overseas who assist foreign governments merely because they are United States persons. It is my belief that the Intelligence Community has demonstrated to Congress how judicious, selective and careful they have been when it comes to protecting the very small number of U.S. citizens this applies to and does not necessarily need the FISC to approve their actions every step along the way. The Congress considered legislative proposals throughout two Congresses prior to enacting FISA in 1978 and explicitly did not address the issue of U.S. persons overseas because they felt it demanded further consideration. I am concerned that Congress is acting hastily on this subject and moving away from the original intent of FISA. Allowing FISC judges to review the President's constitutional powers to conduct foreign policy and defend the nation is a gross expansion of judicial power from the 1978 FISA law, which was intended to apply solely to domestic surveillance of U.S. persons. Instead of granting oversight of the Executive Branch to judges, Congress should exercise due diligence and reconsider these points after careful examination of the current authorities governing surveillance of U.S. persons overseas. Judges are not elected officials held accountable to the American people like the President and the Congress and it should not be within their jurisdiction to provide after the fact approval or disapproval to the procedures the Executive believes are necessary for our national security. Finally, I am pleased to see the Committee take responsible action by providing our telecommunications carriers with liability relief. The FISA Amendments Act of 2007 provides that no civil actions may be brought against electronic communication providers if the Attorney General certifies: (1) the assistance alleged was in connection with a communication intelligence activity that was authorized by the President between September 11, 2001 and January 17, 2007, designed to detect or prevent a terrorist attack against the U.S. and described in writing to the provider that it was authorized by the President and lawful; or (2) the communication provider did not provide any of the alleged assistance. It also removes any claims from state courts to the Federal court and preempts any state from conducting an investigation into an electronic communication provider's alleged assistance to the government. The government often needs assistance from the private sector in order to protect our national security and in return they should be able to rely on the government's assurances. America's telecommunication carriers should not have to front heavy legal battles shrouded in secrecy on the government's behalf. Overall, I support the efforts of the Chairman and Vice Chairman to draft bi-partisan legislation. Whatever form the legislation takes before being presented to the President for his signature, Congress should seek the Director of National Intelligence's comments and advice in order to avoid any unintended consequences from well-intentioned amendments. It is critical that Congress enact FISA legislation, with the input of our core collectors, to ensure that our Intelligence Community has the tools and the legal framework necessary to protect our country from terrorist attacks and to collect vital foreign intelligence information. SAXBY CHAMBLISS. ADDITIONAL VIEWS OF SENATORS FEINSTEIN, SNOWE, AND HAGELChairman Rockefeller and Vice Chairman Bond are to be commended for producing a bipartisan bill that the Director of National Intelligence and Department of Justice support. They and their staff have worked together to produce this bill. It is a signal accomplishment, and we commend them. We believe this legislation is a strong bipartisan bill that will next be reviewed by the Senate Judiciary Committee. We hope that the bill can be further improved, particularly with respect to the issue of FISA's exclusivity, as discussed below. EXCLUSIVITY OF FISAThe legislation includes language on the exclusivity of FISA that requires further examination. Section 102 of the Intelligence Committee bill states that the Foreign Intelligence Surveillance Act and relevant portions of Title 18 of the U.S. Code are the `exclusive means' by which `electronic surveillance' may be conducted. The definition of the term `electronic surveillance,' however, was written in 1978 and has been the subject of exemptions and limitations since then. It is essential that the Committee determine whether there are any intelligence techniques that fall within this legislation's scope for which the Executive Branch may not follow the bill's procedures. This is a necessarily classified topic, but we intend to conduct careful review of these techniques before this legislation is enacted. It is our view that the Foreign Intelligence Surveillance Act, as amended, should be the only legal way of acquiring the communications of people inside the United States, and U.S. persons outside the United States in certain circumstances, for foreign intelligence purposes. There is a history to this provision that makes a strong congressional re-affirmation even more important. The legislative history from when FISA was originally enacted in 1978 is quite clear. It states: [d]espite any inherent power of the President to authorize warrantless electronic surveillance in the absence of legislation, by this bill and chapter 119 of title 18, Congress will have legislated with regard to electronic surveillance in the United States, that legislation with its procedures and safeguards prohibit the President, notwithstanding any inherent powers, from violating the terms of that legislation. (emphasis added) The legislative history continued by describing the Supreme Court's decision in the Keith case, in which the Court ruled that at that time, Congress hadn't ruled in this field and `simply left the presidential powers where it found them.' But at this point, the legislative history turns. It said: The Foreign Intelligence Surveillance Act, however, does not simply leave Presidential powers where it finds them. To the contrary, this bill would substitute a clear legislative authorization pursuant to statutory, not constitutional, standards. (emphasis added) This was the statement accompanying H.R. 7138 as it passed the 95th Congress. It is clear that Congress enacted the 1978 legislation with the specific intent that it would be the only authority under which foreign intelligence could be obtained from electronic surveillance. It is also clear that President Carter was aware of this intent when he signed the bill into law. President Carter's signing statement noted that: The bill requires, for the first time, a prior judicial warrant for all electronic surveillance for foreign intelligence or counterintelligence purposes in the United States in which communications of U.S. persons might be intercepted. It clarifies the Executive's authority to gather foreign intelligence by electronic surveillance in the United States. It will remove any doubt about the legality of those surveillances which are conducted to protect our country against espionage and international terrorism . . . . (emphasis in original) This intent, and FISA practice for more than 20 years, was cast in doubt after September 11, 2001. At that time, the Executive Branch concluded that it was not bound by FISA's procedures, and proceeded with the Terrorist Surveillance Program (TSP) without requesting amendments to FISA. As explained in the Department of Justice's 2006 White Paper on the legality of the TSP, the Administration cited the Authorization for the Use of Military Force (AUMF) against al Qaeda and its supporters as an alternative authority. The Department pointed to language in FISA that it was exclusive except as authorized by other statute. Congress intended for the `other statute' to be the laws governing criminal wiretaps, not a broad and undefined exception. We do not believe that the AUMF provided this authorization. We have seen no evidence that Congress intended the AUMF to authorize a widespread effort to collect the content of Americans' phone and email communications, nor does the AUMF refer to the subject. Furthermore, FISA already contained a provision that clearly governed surveillance actions in a wartime situation--a 15-day authorization for warrantless surveillance following a declaration of war. So this was not an uncontemplated question following September 11 and the passage of the AUMF. More troubling, however, is the Administration's claim that the Constitution would not allow FISA to limit the President's ability to conduct surveillance and other activities covered by that legislation in any way he sees fit. The Department of Justice argues that Congress has not, and cannot, so limit the Executive's power. For these reasons, we continue to believe that Congress must write strong language to ensure that FISA is the exclusive means that the Intelligence Community may intercept, analyze, and disseminate the phone and electronic communications of any American for intelligence purposes. We will work to strengthen the exclusivity language as the bill progresses. Achieving the balance between necessary intelligence collection and the protection of Americans' privacy rights is perhaps nowhere as difficult as in the areas surrounding FISA. It is not a field in which partisan politics should play a part. Nor is it one where the Congress and the President should be in conflict. We thank again Chairman Rockefeller and Vice
Chairman Bond for their work on this legislation. It is a big step
forward. ADDITIONAL VIEWS OF SENATOR NELSONI strongly support the efforts of Chairman Rockefeller and Vice-Chairman Bond to craft a compromise that a bipartisan majority of the SSCI supported. This bill strikes the right balance, protecting Americans' privacy while giving the government the tools that it needs to stop terrorists. During the committee's mark-up of the bill, I offered an amendment that would have struck Title II from the bill. Title II provides immunity to any telecommunications company that may have provided assistance to the government under the President's warrantless surveillance program between September 11, 2001 and January 17, 2007. I am sympathetic to the notion that companies may have acted in good faith to provide the government with assistance during a national security crisis, but I believe it's premature to grant them immunity. The committee received critical documents only 48 hours before the vote. I believe we need more time to gain a full understanding of the President's warrantless surveillance program before deciding whether the companies should receive retroactive immunity. I voted to support the bill because legislation that provides protections for Americans while enabling the government to get the information it needs to stop terrorists is necessary and immediate. BILL NELSON. ADDITIONAL VIEWS OF SENATOR WHITEHOUSEWith this legislation, the Senate takes an important step forward to repair damage the Bush Administration has done to the privacy and security of innocent American citizens. The President's warrantless wiretapping program provoked dismay and outrage not only in my home state of Rhode Island, but throughout the nation. This outrage has continued largely unabated as the President has delayed and circumscribed efforts by the American people's representatives to determine what took place under the secret program. This legislation moves the Government toward a solution that gives the law enforcement and intelligence communities the resources they need to keep us secure, but also upholds the critical balance of law and principle upon which that security depends. I know such a solution exists. I saw it in action during my years as a federal and state prosecutor. But rather than seek that common-sense solution, this President chose to trample on the rights of the very people he was sworn to protect, and left millions of Americans wondering whether they can trust their government. In August, I voted against the Protect America Act, a flawed law rushed through Congress under intense political pressure from the Administration, because the law amended the Foreign Intelligence Surveillance Act (FISA) in a way that did not adequately protect the rights of American citizens who are caught up in warrantless government surveillance. I voted for the new bill in the Senate Select Committee on Intelligence because it takes a significant step away from the flawed August law and toward the protection of civil liberties. It is a significant first step in the four-step process that I hope will lead us to a bill that both protects Americans' privacy rights and strengthens our ability to conduct essential foreign intelligence surveillance. Everyone agrees that United States intelligence agencies should be able to wiretap foreign targets overseas without judicial authorization. The problem we are obliged to address, but failed to address adequately in the August law, emerges when surveillance overseas implicates: (1) U.S. citizens who happen to be abroad; or (2) U.S. citizens in America whose communications are intercepted incidentally, for instance when they communicate with a surveilled target. There are simple touchstones for protecting Americans' rights in this context: the principles that guide domestic law enforcement surveillance. When I served as a United States Attorney and as Rhode Island Attorney General, I sought, obtained, and oversaw wiretaps in gang, narcotics, and public corruption investigations. Two fundamental principles prevailed. First, the government cannot target Americans for surveillance without the approval of a judge. Second, surveilling agents are required by the court to `minimize' the surveillance if it is not relevant to the investigation. This helps protect innocent citizens who are not the target, but who talk to the target. I have worked closely with the Chairman and other members of the Committee to strengthen protections for U.S. citizens in the new bill, including by proposing and supporting a number of amendments. The new bill ensures the involvement and oversight of the Foreign Intelligence Surveillance Court when U.S. citizens abroad are targeted. I cosponsored and strongly supported an amendment, proposed by Senator Wyden, and approved by the Committee, that requires the Government to obtain a traditional warrant from the Foreign Intelligence Surveillance Court (FISC) if the Government wants to collect, from a source within the United States, against an American overseas. The amendment also requires that, in order to collect surveillance overseas on a U.S. citizen traveling or living overseas, the Government obtain a determination from the FISC that the targeted U.S. citizen is a foreign power or the agent of a foreign power. Furthermore, the FISC must issue an ex parte order approving this surveillance. These changes are critical to ensuring that the new warrantless surveillance authority enacted under the Protect America Act does not allow the Government to intrude inappropriately upon the privacy of U.S. citizens. Nonetheless, the Administration has already signaled that this amendment may create certain challenges that need to be resolved. If the Administration intends to propose an alternative, it must preserve the Court's role in determining whether there is probable cause to believe the U.S. citizen is a foreign power or an agent of a foreign power. U.S. citizens do not, and should not be expected to, leave their privacy rights behind every time they leave the United States. In protecting the privacy of Americans while conducting surveillance, the critical element is judicial oversight. In the August law, the FISC was authorized only to review the Government's determination that its surveillance targets persons `reasonably believed to be outside the United States'--and to intervene only if the Government's determination is `clearly erroneous.' In contrast, under this bill, the FISC will need to approve both the `targeting' determination and the `minimization' procedures that are designed to protect U.S. citizens in America whose communications are intercepted incidentally. This bill also rejects the unduly permissive standard of review that the August law had imposed. While these changes are positive and significant, there remains important work to be done to improve the bill. The FISC should not be required to approve the minimization procedures for warrantless surveillance of Americans and then forced to ignore their implementation. I have drafted and introduced an amendment that would clarify that the FISC has the same powers to review the Government's compliance with minimization procedures for warrantless surveillance as it does with the minimization procedures used pursuant to traditional FISA warrants. This change is not yet a part of the bill, but I will continue to press for the Court's clear authority to check on the implementation of these minimization procedures. U.S. citizens whose communications are incidentally intercepted should enjoy a two-stage protection: the minimization procedures themselves, and the salutary prospect of judicial review of compliance. Engaging more than one branch of government is a traditional protection in our American system of government. Here, those checks and balances can be exercised in a way that is neither burdensome nor disruptive to intelligence-gathering operations. As the bill continues to move through the legislative process, I will seek to strengthen the protections for U.S. citizens. Finally, Congress is seeking to revise FISA in light of a program that was conducted outside its framework. As it acts, Congress must leave no shadow of a doubt that the Foreign Intelligence Surveillance Act, as amended, is the exclusive means for authorizing foreign intelligence surveillance. I will stand as a strong supporter of Senator Feinstein's efforts to prevent this Administration or future ones from acting outside this law. SHELDON WHITEHOUSE. MINORITY VIEWS OF SENATORS FEINGOLD AND WYDENAs strong opponents of the Protect America Act, we have been very concerned about the vast new authorities granted under that legislation, as well as the possibility that its vague language will be interpreted by the executive branch to permit even broader surveillance than has already been acknowledged publicly. We support the underlying purpose of FISA reform: to permit the government to conduct surveillance of foreign targets, particularly terrorist suspects, as they communicate with other persons overseas, without having to obtain a FISA court order. We believe that this purpose can be achieved while protecting the rights and privacy of law-abiding Americans conducting international communications. We believe that the bill that passed the Senate Intelligence Committee unfortunately falls short of that goal in some respects, and we are also concerned that it also provides sweeping retroactive immunity to those alleged to have cooperated with the President's warrantless wiretapping program. We were therefore disappointed with the bill and voted against it. We look forward to the opportunity to debate further modifications to this bill as it passes through the Judiciary Committee and onto the Senate floor. We were pleased, however, that three amendments we offered passed. One amendment, which we offered along with Senator Whitehouse, ensures that whenever the government wants to target an American overseas, the FISA Court--and not just the Attorney General--must determine that there is probable cause that the American is an agent of a foreign power. Americans' rights should not diminish when they cross the border, nor should the extent of those rights be subject to the whim of the executive branch without the checks and balances provided by the court. Another amendment adopted by the Committee ensures that the Department of Justice Inspector General and other Inspectors General have the information they need to review fully how the new authorities are implemented. It also requires that the Administration provide Congress with additional information--including access to reports and documentation--so that Congress can assess how the legislation is being used. For purposes of oversight and possible reauthorization at the end of a sunset period, this information is critical. In addition, an amendment offered by Senator Feingold and accepted by the Committee ensures that any FISA Court legal opinions related to the new authorities will be provided, in a timely manner, to Congress. Despite these improvements, the bill fails to protect the privacy rights of Americans in critical areas addressed in other amendments we either offered or filed. One such amendment, filed by Senator Feingold, would have permitted ongoing surveillance of persons overseas, but directed that if the government knows that certain communications involved persons in the United States, those communications with the U.S. would have to be sequestered and would be accessible to government agents only with the approval of the FISA Court or in emergencies. This amendment would grant the flexibility the administration has said it needs while providing protection to law-abiding Americans making international calls. It also recognizes that, given the broad new authorities provided by the PAA and this new legislation, non-statutory, classified minimization procedures do not provide the independent review needed to protect the privacy of Americans. We were disappointed that the Committee rejected an amendment offered by Senator Feingold that would have provided for stronger, more effective minimization procedures. The amendment would have limited the types of U.S. person information that could be disseminated to information necessary to protect against terrorism and other threats to national security, ensured that the FISA Court has sufficient information to assess compliance with minimization procedures, and given the FISA Court the authority to review and enforce that compliance. This amendment was a limited alternative to a FISA Court order requirement, and its defeat leaves in place what we believe are inadequate mechanisms for protecting the privacy of Americans' communications. We are also concerned about the lack of incentives for the government to target only those persons who are overseas in the first place. The bill improves upon the PAA by removing a `clearly erroneous' standard for FISA court review of the procedures the government uses to ensure that surveillance targets are reasonably likely to be overseas. But there are no consequences to the government if the court determines that the government's procedures are not reasonably designed to target persons reasonably believed to be overseas. The government cannot use those procedures going forward, but it can retain and share everything it learned through the use of the unlawful procedures up until the point when the Court rejected them. We therefore supported an amendment offered by Senator Feingold that would have limited the use of U.S. person information obtained through targeting procedures later rejected by the court. The defeat of that amendment means that, even when the court finds that the government's procedures are targeting Americans in the United States without a warrant, the government can continue to use the information obtained through that surveillance however it sees fit. This loophole offers an invitation to warrantless wiretapping. Senator Wyden filed an amendment that would have limited the scope of the authorities to foreign intelligence information related to national security threats. The Administration's stated purpose for the PAA, and the purported emergency that drove the precipitous passage of that legislation, was the terrorist threat to the United States. We strongly support providing the government the authorities it needs to detect terrorists and other national security threats and believe that this can be done while protecting the rights and privacy interests of Americans. We do not believe, however, that broad new authorities related to any communications involving any foreign intelligence (a term that is very broadly defined) are justified, particularly in the absence of the kinds of oversight and checks and balances needed to defend the rights of Americans and protect against abuses. Another amendment we filed would have required that a court order be obtained when a `significant purpose' of the wiretapping is to obtain information on an American talking to a foreign target. The Director of National Intelligence has stated publicly that `reverse targeting' is a violation of the 4th Amendment to the United States Constitution and subject to criminal prosecution. This amendment would have provided some protection for this constitutional principle and would have prevented the government from using its foreign targeting authorities to obtain information on Americans. We are concerned that the language that remains in the bill--prohibiting only surveillance when the purpose of the surveillance is to obtain information on an American--may not protect against the government targeting a person overseas as a fig leaf for surveillance of the American with whom the overseas person is communicating. We strongly supported Senator Nelson's amendment to strip from the bill a provision providing blanket immunity to private entities alleged to have cooperated with the Administration's warrantless wiretapping program. The arrangements made by the Administration the week of the mark-up to provide limited access to certain documents related to the program were unfortunately inadequate. More importantly, nothing in the documents, or anything else that we have seen in the course of our review of the program, has convinced us that a sweeping grant of immunity for private entities should have been included in this legislation. Finally, we were extremely disappointed that a
Feingold amendment to shorten the six-year sunset to two years did not
pass. The vast new authorities provided under the PAA, the ongoing
confusion about how legislation in this area is and will be interpreted,
and ongoing changes in telecommunications technology require that Congress
conduct a near-term assessment of how this legislation is being
interpreted and implemented and whether changes to the new authorities are
needed. In our view, Congress should not wait until 2013 to conduct this
thorough review.
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